Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd
[2009] FWA 1911
•23 DECEMBER 2009
[2009] FWA 1911 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Baulderstone Pty Ltd
(B2009/11220)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 23 DECEMBER 2009 |
Proposed protected action ballot by employees of Baulderstone Pty Ltd.
[1] On 21 December 2009 the Construction, Forestry, Mining and Energy Union (CFMEU) sought a protected action ballot pursuant to section 437 of the Fair Work Act 2009 (the Act) with respect to members, employees of Baulderstone Pty Ltd (Baulderstone).
[2] The application was the subject of a hearing on 22 December 2009. At this hearing, Mr Roberts appeared for the CFMEU and Mr Earls of the Master Builders Association of SA Inc appeared for Baulderstone.
[3] Evidence was given in support of the application by Mr Roberts, together with Baulderstone employees Mr Fry, Mr Williams and Mr Chynoweth. Ms Trepa of Baulderstone gave evidence in support of the Baulderstone position that the application was premature and should be dismissed. A substantial amount of material in the form of various claims was provided to me. I have taken all the evidence into account in considering the application.
[4] Section 443 states:
“443 When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[5] Subsection (1) is particularly pertinent to this application. There is no dispute that the application was properly made pursuant to section 443(1)(a). However, there are two issues in dispute with respect to subsection 443(1)(b). Firstly, Baulderstone argue that the CFMEU made claims on 16 December 2009, which claims exceeded the initial claims put to the employer in September and October 2009 such that the CFMEU could not now be described as genuinely trying to reach agreement.
[6] Secondly, Baulderstone asserted that a provision claimed on 16 December 2009 for supplementary labour hire could not be included in an agreement and hence, the CFMEU was not genuinely trying to reach an agreement.
[7] This decision necessarily deals with two other issues. Firstly, the form of the questions sought by the CFMEU and secondly, the timing of the ballot.
[8] The background to the application is simply summarised. The CFMEU and Baulderstone have entered into enterprise agreements in various forms over many years. The current agreement achieved its nominal expiry date on 21 November 2009.
[9] The parties commenced serious discussions on a replacement agreement in early August 2009. In September and again in October the CFMEU put a draft agreement to Baulderstone for consideration. Baulderstone has subsequently put a draft proposal of its own to the CFMEU and to its employees for consideration. Numerous meetings on disagreed issues have occurred and the negotiation process has been difficult and contentious.
[10] The Baulderstone draft proposal formed the basis for a meeting on 16 December 2009. At this meeting, Mr Roberts was the lead CFMEU negotiator and made various comments and notations on his copy of the Baulderstone draft agreement. These notations were subsequently provided to Baulderstone as an aid in the development of the employer response. The extent to which these notations formed explicit additional claims is a matter of dispute. A further meeting has been set for 7 January 2010, although there is some doubt about just what will happen at that meeting.
The Additional Claims
[11] In Total Marine Services Pty Ltd v Maritime Union of Australia 1 a Full Bench stated:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[12] I have adopted this approach to determine if the CFMEU application is premature in these circumstances.
[13] The extensive draft agreement provided by the CFMEU to Baulderstone in September and again in October 2009 formed the general claims made by the union and addressed the major items being sought. I have concluded that the negotiations were often heated and were not particularly well structured.
[14] At the meeting on 16 December 2009, the CFMEU provided its responses to the Baulderstone agreement proposal. The major items in dispute remained related to the structure of the agreement, the operation of the current productivity allowance which incorporates a range of allowances most commonly addressed on an individual basis, wages, superannuation, redundancy and travel, together with agreement on the use of supplementary labour.
[15] In general terms, I have taken the hand written notes attributed to Mr Roberts on the draft agreement discussed on 16 December 2009 as indicative of the negotiating position he adopted in response to the employer proposal.
[16] I have not taken these notes to be necessarily definitive of the final CFMEU position. It appears to me that these notes were made in the context of a robust negotiating session where the CFMEU was seeking the best possible arrangement for its members and where it anticipated that Baulderstone would reject a number of its proposals in whole or in part, through negotiations which provided for flexible outcomes.
[17] I have noted that certain items in the Baulderstone draft, such as the maximum number of hours which could be worked in any one week already exceeded the CFMEU claim and I have understood these to reflect matters that were the continuing subject of negotiations. I do not consider any of these items are of such a magnitude that they could be described as "major items" in the context of the test set out in Total Marine Services.
[18] The vast majority of the items where Mr Roberts documented a note which could conceivably be taken as a claim, reflected claims contained within the CFMEU proposal.
[19] A number of Mr Roberts’ notes simply reflect issues about which he sought clarification and cannot be described as any form of claim at this stage. In other cases, the notes reflect Mr Roberts’ preference for the corresponding CFMEU proposal.
[20] A number of Mr Roberts’ notes refer to the difference between the parties about the future operation of the productivity allowance in the current agreement, and if and how that allowance should be divided into a number of component parts consistent with a more traditional award approach. I am unable to describe these references as new claims as they reflect the current contested negotiating positions.
[21] The position put by Mr Roberts with respect to an increase in the Living Away from Home Allowance most closely approximates a major claim made beyond the initial CFMEU claims. However, I am satisfied that this issue reasonably arose in the course of the bargaining process and may indeed be resolved through that process. I do not consider that it is so far removed from the CFMEU claims that it dictates that the CFMEU is not genuinely trying to reach an agreement.
[22] In overall terms, the major claims substantially reflect the CFMEU agreement proposal and the difficulties the parties are having in reaching an agreement. These difficulties do not represent the basis for a conclusion that the CFMEU is not, and has not been, genuinely trying to reach an agreement. They simply reflect the fact that the parties have both maintained strong negotiating positions.
[23] Consequently, I do not consider that the position adopted by the CFMEU at the 16 December 2009 meeting, or subsequent to that meeting, through Mr Roberts’ handwritten notes, represented a changed position on the part of the CFMEU which indicates that it is not genuinely trying to reach an agreement.
[24] To the extent that Baulderstone has asserted that the CFMEU changed its position at the 16 December 2009 meeting and reneged on various previously agreed matters, I am not satisfied that this was the case, or that the negotiating process is indicative of a lack of genuineness in trying to reach an agreement.
The Supplementary Labour Hire Clause
[25] The most recent CFMEU iteration of the Supplementary Labour Hire clause claimed in the agreement is:
“The Company recognises that in certain circumstances the use of contractors and labour hire may affect the job security of employees covered by this agreement. From time to time, the Company will need to engage labour hire contractors to cover short term requirements. Such requirements include absences due to leave, peak work loads, emergencies and unforeseen shortages (e.g. employees resigning or transferring to take up other employment).
Where any labour hire contractor is engaged to perform work that might otherwise be performed by employees, and the labour hire contractor does not have the benefit of an agreement approved by Fair Work Australia (or a collective agreement – based transitional instrument as defined in Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), the rates of pay and conditions for that contractor will be less favourable than they would have received if they were engaged as employees under this Agreement.
Nothing in this clause:
• requires, has the effect of requiring, or purports to require or have the effect of requiring; or
• permits, has the effect of permitting or purports to permit or have the effect of permitting;
a contravention of Part 3 – 1 of the Fair Work Act 2009 (Cth) (which deals with general protections).”
[26] I do not consider that the first paragraph of this proposed provision represents a restriction or limitation on Baulderstone’s capacity to contract with labour hire providers.
[27] I consider that the second paragraph is of dubious effect and value in so far as it may seek to impose obligations on an employer who is not party to this agreement. However, in any event, I do not consider that this provision, even if it was to be inserted into a proposed agreement, would represent a non-permitted matter which would require a conclusion that the CFMEU is not genuinely trying to reach an agreement.
[28] In this respect I have applied the approach followed by a Full Bench of Fair Work Australia in Australian Postal Corporation v CEPU 2 in the following terms:
“[43] It is apparent that the scheme of the FW Act is that the substantive terms of an enterprise agreement are to be about permitted matters. Since an enterprise agreement is made by employees approving a proposed enterprise agreement, it follows that the substantive terms of a proposed enterprise agreement are also to be about permitted matters.
[44] As a result, an applicant for a protected action ballot order pursuing a claim as a substantive term of a proposed enterprise agreement which is not about a permitted matter is not genuinely trying to reach an agreement with the employer of the employees to be balloted.”
[29] In Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004 and Rural City of Murray Bridge Nursing Employees, ANF (Aged Care)-Enterprise Agreement 2004 and La Trobe University Children's Centre Enterprise Bargaining Agreement 2004 3 a Full Bench of the Australian Industrial Relations Commission considered a comparable provision in the following terms:
“[83] …. The intent of cl.17.6 is that employees of labour hire agencies working at Schefenacker should receive the same increase as the Schefenacker employees will receive under the agreement. This is sought to be achieved by obliging Schenefacker to give that directive to the agencies. Whether that means will be effective or not, the intent is that the relationship between the cost of labour supplied by the agencies and the cost of the labour of Schefenacker's employees will be relevantly the same after the agreement as it was before. For that reason we think that the sub-clause pertains to the relationship between Schefenacker and its employees. It directly concerns the security of employment of the employees covered by the agreement.”
[30] Consequently, I do not consider that the CFMEU proposed Supplementary Labour Hire clause represents a basis for concluding that the CFMEU is not genuinely trying to reach an agreement. Of course, whether that provision is agreed with Baulderstone is a different issue altogether.
Conclusion - section 443(1)(b)
[31] For the foregoing reasons I am satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with Baulderstone. As a consequence, section 443(1) requires that a protected action ballot order must be made.
[32] Baulderstone took issue with two of the 11 questions sought by the CFMEU for inclusion in an order. These were:
Ban/s on new inductions?
Ban/s on amendments and the approval of new JSA’s?
[33] Baulderstone argued that Fair Work Australia lacked the jurisdiction to issue an order in these terms. The CFMEU indicated that it did not seriously pursue the inclusion of these two questions.
[34] It is not necessary that I consider whether the jurisdiction exists to include these two questions. Irrespective of whether that jurisdiction exists, I am not prepared to provide for questions of this nature which have the potential to cause occupational health and safety concerns and confusion. Whilst it is clear that the CFMEU sought approval for these actions as an industrial device rather than as a means of undermining occupational health and safety, I consider that industrial action which has the real or perceived effect of undermining shared workplace safety obligations is entirely inappropriate.
[35] The two questions will be removed from the Order to be made.
The date of the ballot
[36] This decision is being made after the building industry Christmas shutdown has commenced. While this shutdown concludes on 4 January 2010, Baulderstone has advised that significant numbers of employees are also likely to be absent until 11 January 2010.
[37] That issue is compounded by limitations on the Australian Electoral Commission’s capacity to conduct a ballot over the Christmas holiday period.
[38] On the information before me I consider that there is a real risk that a ballot which commences before 11 January 2010 may not meet the objectives specified in section 436 of the Act of a fair, simple and democratic process to determine whether Baulderstone employees wish to engage in industrial action.
[39] My Order (PR992192) reflecting this decision will recognise this delay.
SENIOR DEPUTY PRESIDENT
Appearances:
D Roberts for the Construction, Forestry, Mining and Energy Union.
T Earls representing Baulderstone Pty Ltd.
Hearing details:
2009.
Adelaide:
December 22.
1 (2009) FWAFB 368
2 (2009) FWAFB 599
3 PR956575
Printed by authority of the Commonwealth Government Printer
<Price code C, PR992191>
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